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A comprehensive understanding of non-interference with judiciary

A comprehensive understanding of non-interference with judiciary



27 December 2017

An Article by the Asian Human Rights Commission

Sri Lanka: A comprehensive understanding of non-interference with
judiciary is a dire need in Sri Lanka

By Nagananda Kodituwakku and Basil Fernando

It was heartening to hear from the incumbent Chief Justice, Priyasath
Dep, that Sri Lanka’s judiciary is free from any interference. This
statement comes as a relief, given that we can recall a long period of
the most despicable forms of the interference with the judiciary in
Sri Lanka and how, unfortunately, even the Supreme Court learned to
adjust to such interference. It all started with JR Jayawardene, the
first Executive President, who believed that being the Executive
President meant having the judiciary under his thumb. The whole
constitutional design was changed to achieve this purpose.
Unfortunately, this constitutional design still remains intact. Other
Executive Presidents followed President Jayawardene’s example since

The worst betrayal of the very notion of the independence of the
judiciary happened when a Chief Justice – Sarath Nanda Silva as
Chief Justice – sacrificed the very notion of an independent
judiciary and became a servant of the Executive Presidential system.
The then government made the path clear for him by leapfrogging him
from the office of President of the Court of Appeal to the office of
the Chief Justice.

In a most sophisticated way, he sacrificed the independence of the
judiciary by severing the procedural law from the substantive law,
thereby making procedural law a plaything in the hands of the
Executive President. This, accompanied by the most dramatic forms of
bullying of the lawyers, and also some litigants, created a very
abnormal judicial system in Sri Lanka. The most glaring examples of
this bullying were the two cases relating to contempt of court, which
brought Sri Lanka into international disrepute. The cases were those
relating to Michael Emmanuel Fernando (known to the public as Tony
Fernando) and SB Dissanayake, who was then a minister in Chandrika
Bandaranayke’s cabinet. The United Nations Human Rights Committee,
in their Opinions, condemned both these judgements of the Supreme
Court, declaring them to be violations of the human rights of the two
persons concerned and recommending to the Sri Lankan government that
they should make contempt of court laws in keeping with international
norms and standards.

The trend of interference took an even uglier form during the regimes
of Mahinda Rajapaksha. The culmination of this was the creation of a
Chief Justice with the name Mohan Peiris, who even went before the
newly elected government of Maithripala Sirisena to declare that he
was willing to do anything that the Executive wanted him to. Such is
the sad tale of the interferences with the independence of the
judiciary in Sri Lanka. What Mohan Peiris was saying to the new
government was that he was willing to do what he did for Mahinda
Rajapakshe’s regime. It is a credit to the new government that they
not only rejected the offer, but that both President and Prime
Minister themselves stated publically the offer being made by Mohan
Peiris. Under these circumstances, it is further heartening to hear
from the incumbent Chief Justice that there is no longer any such
interference with the judiciary.

However, the issue that needs to be considered is that such long years
of terrible interference do not fail to leave traces within the
system. What is required of any people concerned about what is at risk
when the judiciary is interfered with is to do their utmost to
reflect, in the most honest fashion possible, as to whether everything
of such a dark period has been erased and gotten rid of so quickly.

In this, it is essential to consider what interference with the
judiciary means in a comprehensive sense. Interference does not merely
mean not receiving telephone calls and other forms of direct
instructions on how judges should decide cases. The real test is as to
whether the system of law and the administration of justice have
gotten back to the point where it can be honestly claimed that the
system functions well and that every element of the system has gotten
rid of the corruption that it had been exposed to. Such victories
should not be lightly claimed for all aspects of individual freedoms
and the whole life of the nation depends on such things, like the way
blood runs through the human body. The most essential element to
consider is whether the competence of the judiciary that has suffered
past interference has been restored fully.

In scrutinizing this aspect, it is essential to consider the fact that
one of the most prominent ways of interfering with the judiciary was
to make political choices about judicial appointments. For a litigant
that goes before the courts, and for the lawyers who represent them,
their faith in the system will very much depend on their belief that
the judiciary has overcome the problems of the unprincipled way in
which some judges were appointed in the not-so-distant past and that
the practice has been brought to an end. This task of scrutinizing the
system is not only a task for the Executive, but also for the
Judiciary itself, and also the legal profession and the public at
large. They should all be able to say that a damned and dark period is
over, and that we are in a period where new light is shining. The real
question is as to whether such a claim can be made honestly.

Does the legal process in Sri Lanka function sufficiently well that we
could claim today that the due process of law can be assured within
our system? If one is to go by the large numbers of litigants, who are
the ultimate judges on this issue, we cannot yet claim such a
situation has dawned.

There is an even clearer test. Can it be said that the administrative
and political systems of Sri Lanka have gotten rid of corruption as a
major issue? Of course, given the level of corruption that prevails
throughout society, no one can claim that we have arrived at that
point. The test of the independence of the judiciary is the test of
the efficiency of the legal system to control corruption, abuse of
power and the interferences into the freedoms of the individual.

The real test that the system is beyond the interference of anybody
is, ultimately, whether the administration of justice is functioning
well. In a practical sense, the test is as to whether the country’s
corruption-control body (CIABOC) is adequately competent and efficient
to investigate allegations of corruption and prosecute the cases
successfully. If the CIABOC is at fault, the country’s judiciary
shall take it to task.

The recent report furnished to the UN High Commissioner for Human
Rights by the activist-lawyer, Nagananda Kodituwakku, who fights
government corruption in all three organs of the government suggests
that there is a long way to go to.

# # #

The Asian Human Rights Commission (AHRC) works towards the radical
rethinking and fundamental redesigning of justice institutions in
order to protect and promote human rights in Asia. Established in
1984, the Hong Kong based organisation is a Laureate of the Right
Livelihood Award, 2014.

Read this Article online

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